December 14, 2010

Senate is Still Working on Judicial Nominees

U.S. Senate Majority Leader Harry Reid (D-Nev.) said today he still wants to confirm more judicial nominees before adjourning for the year, but he gave no hints about what an agreement might look like.

Reid and Minority Leader Mitch McConnell (R-Ky.) have been negotiating on and off for months, aides to both senators have said. The Senate has not confirmed any of President Barack Obama’s judicial nominees since September, and there are 38 who are awaiting confirmation votes.

In comments to reporters this afternoon, Reid included nominations in a list of things he wants to accomplish in the next few weeks. The list also includes the New START treaty with Russia, funding for the federal government through September and a new compensation program for 9/11 responders.

Most of the 38 nominees face little or no opposition, but Republican senators are hoping to block four who they say are unqualified or hold extreme views. The four are Goodwin Liu for the U.S. Court of Appeals for the 9th Circuit and three district court nominees: Louis Butler Jr. for the Western District of Wisconsin, Edward Chen for the Northern District of California and John McConnell Jr. for the District of Rhode Island.

Republicans have objected to scheduling votes on those four, meaning that if Democrats want to force a vote on any of them, they will need to use days of scarce time on the Senate floor.

Also awaiting confirmation votes are several nominees for the executive branch, including Bryan Cave partner James Cole for deputy attorney general.

Comments

@Tim: that would make the ABA too powerful in the confirmation process. ABA ratings are just one kind of data point relevant to confirmation, and the Senate should not automatically defer to an unelected body, however well-respected.

I think the right test is whether the nominee has a realistic prospect of confirmation. The Senate has other things to do, so if cloture is not likely to be invoked, it is perfectly proper to move on and deal with other matters. Liu has the entire Republican contingent and some moderate Democrats against him. He won't get cloture, so why waste time on him? Far better to spend that time dealing with more moderate nominees or bills.

A candiate is entitled to an up/down vote providing he/she passes the background check and clears the SJC, (which Liu has done, TWICE), except for cases of extraordinary circumstance..And EC's does not mean one doens't agree with a nominees judicial philosophy....EC would be something like a nominee was disbarred, or is charged with some crime, or faked academic records, in other words, there has to be a COMPELLING reason to deny someone an up/down vote, not simply because Senators Sessions and Kyl thinks someone is too liberal...

I specifically mentioned Painter and Starr as Liu supporters as not only are they conservatives, they are lawyers...These weren't 2 MSNBC talk show hosts supporting Liu, they're conservative attorneys..And add another conservative to list of Liu backers, Clint Bolick, who was President George W. Bush's White House ethics counsel..

I think many conservatives were angered that Liu correctly predicted Sam Ailito was going to be a very conservative judge, which he did and he is...Because Liu may be clairvoyant is not reason to deny him a vote...

Conservatives have done a good job of making Liu out to be the Boogeyman, but there simply is no justification for denying this outstanding nominee a fair vote...Did you know on the subject of school vouchers his position is in line with conservatives...He is no more radical than a Janice Rogers Brown (confirmed during Bush admin.) who equated liberalism w/slavery and thought social security was part of some socialist revolution...You cannot tell me Ms. Brown is mainstream and Liu is an unfit radical...

I truly never thought of Liu as a self promoter...When i think of a self promoter, no better example than LeBron James, who pulled off that stunt last summer on ESPN announcing where he was intending to play in the 10-11 season...Now THAT'S a self promoter expert..

Lastly, though Liu draws most of the conservative fire, they have blocked 3 other highly qualified nominees as well, Louis Butler, Edward Chen, and John Mcdonnell...And they've refused to let Robert Chatigny even have a SJC hearing yet....So conservatives are blocking/obstructing at a level never seen before...

Many incorrectly think this judicial warfare goes back to the Bork hearing but i disagree...Though it was before my time, republicans in the 60's filibustered Abe Fortas when LBJ tried to appoint him Chief Justice....

You assert that it is a "fact" that Goodwin Liu deserves an up or down vote. This is not a "fact." It is an opinion, and certainly a reasonable one, but nobody is ENTITLED to an up-or-down vote. That was made clear by the Democrats, who denied Miguel Estrada an up-or-down vote, despite that a clear majority of Senators were prepared to support him. Neither you or any other Liu apologist has yet to explain why Liu deserves to be treated better than Miguel Estrada.

You may not like our current rules. But first, they are what they are. Al Gore received 543,895 more votes than did GW Bush, but Bush was our 43rd president because of how the rules worked. Applied to Senate confirmations, a minority of Senators can deny a nominee an up-or-down vote if the nominee is deemed too extremely unqualified. Those are our rules. Second, while I accept that reasonable minds differ, I think the rules make perfect sense. They help ensure that presidents will nominate qualified candidates who are able to garner some measure of bipartisan support. There is a HUGE distinction between mainstream Democratic nominees like Elena Kagan, and radical nominees like Goodwin Liu. The Kagans can be put to an up-or-down vote, but extremists like Liu must be blocked at all costs.

As for ad hominem arguments, such as the contention that "Kenneth Starr and Richard Painter support Liu so he must not be so radical," those are completely unpersuasive. Painter's actual arguments completely misread Liu's views, are nonsensical, and reveal far more about Painter's own lack of intellectual rigor (or his personal relationship with Liu, not surprising among fellow academics) than they do about Liu's views. As for Starr, I have serious doubts that he has ever actually read anything written by Liu, much less rendered an informed opinion.

You say you are disappointed that Obama didn't nominate Liu to the Supreme Court, but you don't say why. I can't think of a single reason why anyone other than Liu himself (who is an extraordinarily good self promoter; I will hand him that) would view him as a good Court nominee. Consider the following statement by Liu:

“Judge Alito’s record envisions an America where ... where a black man may be sentenced to death by an all-white jury for killing a white man, ... I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

This is a verbatim statement by Liu. Senator Kyl was 100% correct in calling it for what it was: Vicious, emotionally and racially charged, intemperate, and inconsistent with what we look for in a judge. Is the type of person who would engage in such brutal demagoguery really someone who merits a lifetime appointment to resolve our most important disputes?

You assert that Liu is "mainstream" in blue and purple states. OK. Then, how is it that 72% of the District Attorneys in the state of California (which happens to be the deepest blue of states, in addition to Liu's home state) have taken the extraordinarily step of opposing Liu's nomination? These District Attorney were all elected by their constituents, and have the sworn duty of ensuring public safety and respect for the law. They have expressed their concern that Liu is NOT in the mainstream, and in death penalty cases, will side with murderers "on every remotely debatable point.” That is worse than radical. That is dangerous.

Someone this radical, this extreme, this dangerous, should not receive an up-or-down vote. I again contend that there is no basis for anyone to argue that Liu has an entitlement to such a vote. And if you disagree, I ask you, once again, please to explain why Liu deserves special treatment over that accorded to Miguel Estrada (who, it bears emphasis, was a Supreme Court clerk and argued numerous cases in the appellate courts and Supreme Court, while Liu has only argued one case in his entire career and has an undistinguished record of 0-1).

Goodwin Liu is not fit to be a judge. What happened to Miguel Estrada, and what Liu urged should occur in the confimations of Chief Justice Roberts and Justice Alito (and recall that Obama voted for filibustering both) is precisely the fate that Liu should suffer. Anything else would be unjust, in my opinion.

Liu himself said a nominee should not be confirmed, even though qualified, on the ground that he was "out of the mainstream." He said Samuel Alito was out of the mainstream.

From what benchmark do we measure whether someone is "out of mainstream"? The obviously correct benchmark is the median American voter.

Can anyone seriously contend that Liu's views are closer to that median than Alito's? Obviously not. Liu claimed that Alito was out of the mainstream to the right on capital punishment, even though Alito voted for the murderer in 40% of the cases. Liu's attack on Alito's very moderate record tells quite clearly that Liu is the one out of the mainstream.

The people claiming Liu is mainstream and Alito is not must be measuring from some other benchmark. Perhaps they are measuring from the median academic. Perhaps they are just measuring from themselves.

As for Republicans doing the same thing they denounced the Democrats for, that is distasteful, but there really is no alternative. If Republicans unilaterally disarm when Democrats have the White House but Democrats obstruct without limit when Republicans have it, the judiciary will be skewed in the direction of leftist judicial activism even further than it already is.

Nicely written piece your last post was but it still doesn't change the fact that Goodwin Liu deserves an up/down vote...Clarence Thomas got his vote, as did Robert Bork..And so did many lower court nominees (during last admin.) i mentioned previously...BTW, if Liu is so "radical" then why does he have strong backing from Ken Starr and former Bush lawyer Richard Painter...Those 2 are not exactly San Francisco liberals, yes....Again, in red state land Liu is controversial but in blue and even purple states, Liu is mainstream...I was upset at Obama for not naming him as Stevens replacement for the SCOTUS...But being the pragmatic individual he is, President Obama went with a very moderate choice in Elena Kagan...

Lastly, please read the link below, just to see how far right some of Bush's judicial court nominees were...Absolutely frightening...

1. Estrada only "quit" after Democrats repeatedly voted against cloture (i.e., filibustered). The first of these votes was on March 6, 2003, and there were numerous others. It would be a travesty to treat Liu any better than Estrada, who was far more qualified than Liu.

2. Liu himself denounced Justice Alito as being "at the margin of the judicial spectrum, not the the mainstream," and urged the Senate to reject Alito on that ground. If Alito was at the margin, Liu is unquestionably on the fringes. Liu should now eat his own dog food. Anything else would be a travesty.

3. You assert that "no one ever says why Liu is so radical." I don't think that is quite true, but in any event, here is why I think Liu is radical: He thinks the Constitution "morphs" over time, and that unelected judges may mold and reshape the Constitution like Silly Putty, as they see fit, to reflect society's changing mores and needs. This is truly scary, particularly when this sort of power is put in the hands of someone who has very little life experience, zero judging experience, and nearly zero litigation experience, having argued just one (1) case in court in his entire career (which, incidentally, he lost).

4. Finally, although Liu's career has been short, it has already revealed an appalling lack of integrity. Before the Senate Judiciary Committee, Liu omitted many of his prior statements, which just happened to include some of the comments he knew would be most incendiary and controversial (such as public comments about wanting to see three Supreme Court precedents "swept into the dustbin of history." That cannot possibly have been a coincidence, or innocent oversight. Liu's apparently deliberate failure to deprive the Senate and the public of his full record (for no other reason than to enhance his chances for confirmation to a lifetime position) is consistent with other ways in which Liu has displayed a lack of integrity. His attacks on Justice Alito's death penalty views were not only demagogic (Senator Kyle characterized them as “vicious, emotionally and racially charged, very intemperate"; Liu himself conceded they were “unnecessarily flowery”). They were intellectually dishonest as well. In fact, it seems that many of Liu's arguments contain sleights of hand, distorting both the facts and the law to arrive at a certain and foregone conclusion.

In short, Liu is divisive and polarizing in a way no other Obama nominee has been, and with good reason. His nomination must be withdrawn, or filibustered.

Now Emmitt let's be honest...Estrada quit, he stepped down on his own..

Furthermore, after the Gang of 14 compromise (which apparently only applies when there is a republican president), ALL Bush's very, very, extreme radical nominees incl. but not limited to, Janice Rogers Brown, Prillscila Owen, William Pryor, were all confirmed....

The next time there is a republican president, unless the current obstruction ends, democrats will be entitled to some serious and deserving payback for what republicans are doing now....

Lastly, no one ever says why Liu is so radical....Oh, because he teaches at Berkley that's reason enough i guess for the far right....

Clarence Thomas is the most radical and biased judge who ever sat on any court, and even he had a fair hearing and got an up/down vote...

There is nothing "mainstream" about Goodwin Liu. He is far less qualified than Miguel Estrada, who had actual court experience (unlike Liu), but was filibustered by the Democrats.

Also, the exact same standard that Liu urged the Senate to apply to Justice Alito should apply to Liu himself. Republicans should pull out all the stops to block him from a lifetime appointment. Turnabout is fair play.

Per Rick above, speaking from Arizona, I think only in the bizarre, strange world of northern California near the Bay Area could Goodwin Liu be considered anything like a "mainstream nominee." I think the justified publicity he has received in particular make his nomination a non- starter since the last Congressional elections. A Senator would have to intend to step down next time to spend time supporting him.

Perhaps a good arrangement between Senate Democrats and Republicans would be this: every judicial nominee, regardless of whether the White House is red or blue, gets a straight up or down vote within four months of nomination unless s/he has received an ABA rating of "minority not qualified" or "majority not qualified". The current brinksmanship is astounding.

Only in the mind of Senator Sessions and the bizare strange world of the National Review are the aforementioned nominees far left...To Sessions and the National Review, any judge to the left of Robert Bork is far left...

If Senator Reid needs to keep the senate in session thru XMAS, then he should...There are no excuses, confirm those 4 judges in the first paragraph...Enough of these silly games....